Walking Through New EEOC Guidance on Employer Vaccination Policies

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its questions and answers publication entitled: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  The updates address issues related to employer vaccination policies.  This Client Alert provides an overview of the new guidance, highlighting key issues for employers.

The new guidance addresses potential employer liability under three laws, the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”).  The new guidance only begins to touch on the issues that an employer should consider before instituting a mandatory COVID-19 vaccination policy, however, it provides an initial view into the EEOC’s stance on such policies and their interaction with various employment laws.  Below are some takeaways for employers from the new EEOC guidance.

  1. Employer Policies Mandating Employee Vaccination May Be Permissible

    While there is no question that simply encouraging vaccination or implementing a voluntary policy exposes an employer to less liability, the EEOC guidance references employer mandated vaccination policies being permissible.  Out of the employment laws covered in the guidance, the ADA is the primary potential source of liability for employers with a mandatory vaccination policy.

    The EEOC has indicated that an employer mandated vaccination requirement may be permissible, however, if the vaccination requirement tends to screen out persons with disabilities, the employer must show that an unvaccinated employee would pose a “direct threat” to the employee or others that cannot be eliminated or reduced by a reasonable accommodation to avoid violating the ADA. 

    If the employee does pose a direct threat, the employer must look at reasonable accommodations to eliminate or reduce the risk of the employee, such as teleworking.  An employee that poses a direct threat can only be excluded from the workplace if the employer cannot provide a reasonable accommodation, absent “undue hardship” (action requiring significant difficulty or expense), that would eliminate or reduce the risk the unvaccinated employee poses.  If an ADA-covered employee does not pose a direct threat or the threat can be remedied by a reasonable accommodation, the employer cannot require the employee to be vaccinated. 

    The interactive process will not be new to many employers and HR professionals, but exploring reasonable accommodations during the pandemic will be.  Further, guidance is seemingly constantly changing and as more employees in the workplace are vaccinated the calculation of the direct threat posed by an unvaccinated employee may change.  Needless to say, the interactive process may prove to be a moving target as time goes on.  Our attorneys are here to assist you in working through the direct threat analysis and interactive process.

  2. Administering Vaccinations 

    Employers can administer vaccinations in a variety of ways under a mandatory or voluntary vaccination policy, including directly, via a contract with a third party, or via a third party without a formal contractual relationship.  The administration of a vaccine can also include a variety of pre-screening questions.  Depending on each of these circumstances, the employer could be exposed to liability or fit within certain safe-harbors from liability under the various employment laws.  Needless to say, employers must carefully consider the discrimination laws when drafting and instituting a vaccination policy. 

  3. Administering a Vaccination is not a “Medical Examination”

    The EEOC confirmed that administering vaccines are not “medical examinations” under the ADA.  Under the ADA. if an employer, or a third party on behalf of an employer, performs a medical examination the employer must show the examination is “job-related and consistent with business necessity” to avoid violating the law.  Since simply administering the COVID-19 vaccine is not a medical examination, the employer does not need to make this showing.  However, even though administering the vaccination is not a medical examination, pre-screening questions may implicate the ADA’s coverage regarding disability-related inquiries. 

  4. Issues Regarding Pre-Screening Questions and Administering Vaccinations

    Whether administered directly by an employer or by a third party contractor hired by an employer, the ADA requires the employer to show that pre-screening questions asked to employees are “job-related and consistent with business necessity.”  In order to meet this standard, an employer must have a reasonable belief, based on objective evidence, that an employee that does not answer the questions, and, in turn, is not vaccinated, poses a direct threat to the health or safety of the employee or others. 

    The ADA “job-related and consistent with business necessity” requirement has two exceptions.  First, the requirement doesn’t apply when the vaccination policy is voluntary—because under those circumstances answering the screening questions must also be voluntary.  If an employee refuses to answer a question, the employer can decline to administer the vaccine, but cannot retaliate or threaten the employee.  The second exception applies to employer mandated vaccines, as opposed to voluntary vaccination policies.  The job-related requirement does not apply when an employer mandated vaccine is administered by a third party that does not have a contract with the employer, i.e. a pharmacy or other healthcare provider. 

    Finally, GINA may be implicated by pre-screening questions as well.  Under GINA, except in limited circumstances, it is unlawful for an employer to acquire genetic information of an employee.  GINA defines genetic information to include, among other things, family medical history.  In order to assure that a pre-screening questionnaire does not violate GINA, the questionnaire cannot include any questions regarding genetic information, including family medical history. 

  5. If an Employee Was Vaccinated by the Employee’s Healthcare Provider, the Employer can ask for Proof

    The EEOC has affirmed that asking for proof of vaccination is not a disability-related inquiry under the ADA.  Therefore, assuming an employer’s vaccination policy is otherwise appropriate, an employer may request proof of vaccination without triggering the ADA.  However, subsequent employer questions may cross over the threshold into a disability-related inquiry, triggering the necessity for the employer to show that the questions are “job-related and consistent with business necessity.”  An employer should warn employees not to provide any medical information as part of providing proof of vaccination in order to avoid triggering application of the ADA. 

    GINA may also be implicated when requesting proof of vaccination elsewhere.  If an employee has already received a vaccination from their own healthcare provider and the employer requests proof, the employer should include a warning to the employee not to provide genetic information (i.e. family medical history) as part of the proof of vaccination.  GINA has model language for such a warning, which, if provided, insulates an employer from liability in the event the employee inadvertently discloses genetic information.

  6. Addressing Religious Objections

Employees may object to receiving the vaccination based on a sincerely held religious practice or belief, protected by Title VII.  Religion is broadly defined, and according to the EEOC, requests should generally be granted unless the employer has an objective basis to question the employee’s religious belief, in which case the employer can request supporting information.  An employer must consider whether any reasonable accommodations are possible without undue hardship for an employee with a religious objection to the vaccine before excluding the employee from the workplace.  Undue hardship in this context means “having a more than de minimis cost or burden on the employer.”  The employee may not be excluded from the physical workplace for the employee’s refusal to be vaccinated unless the employer cannot provide a reasonable accommodation without undue hardship. 


This Client Alert is only a view at the tip of the iceberg of the complexities regarding employer vaccination policies.  Vaccines are only just now becoming available, but the time to think about these issues is now.  Installing an employer vaccination policy can be fraught with risk and should not be implemented without careful planning and consideration.  As you work through this process the attorneys at MacDonald Illig are here to assist you with any questions that you have.